Julianna Yau’s blog

Surely everyone has seen William Patry’s final blog post. While many (e.g. Russell McOrmond, Howard Knopf, Ars Technica, Georgia Harper) are lamenting the end, Michael Geist is being very optimistic about the state of copyright in Canada.

Geist contacted me on Facebook (because the CAPTCHA on my blog wasn’t working for him) to clarify that he is not directly involved with the work done by the Vancouver branch of Fair Copyright for Canada or the BC Civil LIberties Association. There, too, he was positive about the work being done by the Fair Copyright for Canada groups (in response to my admittedly bitter characterization of the groups as mobs), and I was all but completely pessimistic and jadded.

Perhaps, as I told Geist, the work being done by the Fair Copyright for Canada groups is more legitimate than the “we deserve free stuff” attitude of many of the early wall-posters on the Fair Copyright for Canada Facebook group. But having removed myself from watching it progress, I wonder how much the lobbying is fair mostly for consumers rather than fair for all. As someone (I don’t remember who) already pointed out, finding a completely impartial party on the issue of copyright is nearly impossible.

This blog is less than a year old, my contribution to the copyright conversation is vastly less than Patry’s, and I’ve already reached the point where I have to seriously consider whether to continue in the direction this blog has been headed. While this is a good a time as any for me to air out my thoughts, this has been on my mind for a couple of months now.

My inital interest in copyright was purely academic, and I felt responsible for joining the political activity because few other creators were a part of it—and now I know why. The demands of keeping up with the Jonses (and the Giests, and the McOrmonds, and the Knopfs, and the Trosows) are almost impossible to fulfill when someone has a full-time job, a part-time job and a handful of volunteer commitments—as is the case for most creators (including myself).

I have never been built for being in the thick of political drama (in fact, that’s even one of the few genres of film which is unable to even secure my attention), and the past few months have confirmed that for me. It’s a good thing I never want celebrity (I’ll settle for fortune without the fame ;)), because I’m much more suited for a life behind the scenes. So I’m going to back off the politics before my fiestiness gets me into trouble, and settle back into the academic study of copyright I prefer and for which I’m better suited. I’m not sure what that means for this blog, but I’ll still be around.

I wasn’t actually planning on attending Elsie Orenstein’s presentation on Copyright Law, Technology and Cultural Management, but I was tired and didn’t think I could handle any new information. It was also nice to get a feel for what type of information other artists and arts administrators were getting on the topic of copyright, and what their concerns were.

I took a bunch of photos, but they didn’t turn out very well because Elsie saturated the slides with info. She covered a lot of ground in an hour and a half, and I may have been the only one who wasn’t overwhelmed because of my prior knowledge of most of what she covered.

Here are my notes (~ indicates my thoughts):

“On the verge of Canadian copyright reform: A primer on copyright and the internet for artists and arts managers”

-What is the internet from an artist’s perspective?
potential worldwide audience
-source of research
-communicate exchange ideas w/in internet community
-platform for new forms of creative expression
-avoid censorship

Means of recognition/promotion
-own website/3rd party website
-brand image
-peer reviews
-self-publication option

Flickr and Rebekka Guoleifsdottir
-developed photo technique to create images that look good in thumbnail form
-got commissions thru Flickr exposure

Terry Fallis
-turned down by publishers and agents
-published 1 chapter at a time as a free, downloadable poadcast on own site, iTunes and podiobooks.om
-won Leacock award

Sources of income
-website sales of artist works
-third party wesite sales
-commissions from ads
-commissions for work
-royalties from collectives

US Hollywood Writers’ Strike – WGA 2008-2011 Settlement
-about uncertainty
-writers only getting flat-fee for downloadable version of their scripts
-now getting % of gross revenue
-studios can stream for free during 7 day window on all streamed content

What is the internet from a copyright lawyer’s perspective
-help client achieve their goals and avoid liability
-difficult because of how quickly technology is changing
-her view that current laws are inadequate
-courts are intervening with both good and bad decisions

-work gets distributed instantaneously
-how to control distribution
-how to get paid

-view by certain rights holder –> invitation to copy if it’s uploaded (“feels like free”!); particularly with younger users
-collective bargaining societies
~same type of info from most other overview sessions on copyright
-implied license –> courts consider whether certain uses are implied due to conduct

Perfect 10 v. Google – Sex, copyright & the internet
-market for thumbnail
-even thought the whole photo was displayed once clicked on by the mouse because Google only ‘framed’ content provided by a link to someone else’s server and Google itself did not make copies on its server”
-removal of content on demand (a reoccurring problem with Google, except the courts give Google leeway because they will remove content on demand)

-Canadian copyright law not based on common law
-legislators kept adding new things to the framework of old legislation
-fair use seen as user right in the US
-fair dealing in Canada finally seen that way

-WIPO, Berne
-how much fair use/fair dealing allowed
-DMCA (shhhhh)

-music industry setting prescience for other media
-p2p not quite illegal in Canada (???)

-whether a “making available right” should replace the current “right to communicate to the public by telecommunication” and extend to neighbouring rights
-TPMs
-moral rights – accreditation can be removed easily in digital works

-ISP liability
-IP addresses reused and reassigned because not everyone online at the same time
-notice & takedown –> court system in Canada; can’t deal directly with ISP
–IP address goes to a computer, not a user
~~p2p vs websites for notice and takedown?

-copyright applies to original work
-courts divided on how to define “original”
–”not copied”, “creative spark”, requiring some “skill, judgement or labour”
-in US, assembly of facts is not copyright protected; in Canada, this is different …which means databases can be protected by copyright

~overview provided, similar to my mind map… but in list form

-Robertson v. Thompson (S.C.C. 2006 decision split 5 to 4)
-compilations
-freelance writers
-CD archive of articles
-database – text only; no ads or layout
-do these databases attract copyright?
-majority of S.C.C. –> databases were structured so that the articles were decontextualized to the point that their connection with the newspaper edition was lost, even though date and page numbers referenced the original paper editions; but felt the CD was not an infringement because it reproduced the article
-Class action –> felt the look & feel of the content should not e a consideration
-US case –> Tasini v New York Times

-Canada considers p2p activity fair usage (huh??)

-CC license mentioned
-time & format shifting, remixing

-not all fair dealing provisions extend to the internet because of the wording of the legislation
~> but what about the intent of the wording?

-UMG Recordings v. MP3.com – Court rejected a “public benefit” argument

-Geist quoted from April 22, 2008
“eviscerate the fair dealing exception in the digital world”

-Michael Snow!

-Galerie d’Art du Petit-Champlain v. Theberge

~registration seen as easier in Canada because no copies of work required, but it’s not actually useful for artists
~how would we know when the work was created if the author is not known?

-impact of Disney on copyright

-Canada has reversionary terms for copyright (copyright reverts to estate after 25 years)

-Geist on “National Gallery Looking for Profits in All the Wrong Places”
-photograph of work –> secondary copyright –> Patry
-artistic merit of photo vs archiving of work through photos

-who owns copyright of photo taken by “a gallery”
-damage to work – moral rights
–need for contract wording on this

-common practice for an archive to charge for the copy of the image plus a license to publish
-impacts what we can create because of access and afforability
-market value of image which has no additional artistic value
-work involved in creating the image
–fee for getting image (admin fee) vs copyright fees of image

-gallery in Quebec w/online gallery; no money for artists; even though artists waived fees, they were not allowed to go through with it because they violated artists rights

-performances and personal recording devices
-SOCAN
-illegal copies in theatre
-artists okay vs house policy
-who owns the performance versus who is the host?
-theatre’s liability
-SOCAN says hall is responsible for remitting revenue

I’m trying to stay on top of blog reading/writing, so here are today’s noteworthy links:

• Michael Geist’s list of 5 copyright myths
• Charlie Angus also predicts a new copyright bill (link via Digital Copyright Canada)
• C-10 still won’t die
• The US isn’t having any more luck with patent reform than copyright reform

I haven’t been blogging much recently because I’ve got too much going on with my art practice. Not only have I recently finished a sculpture and uploaded about a million pictures of it, but I also sold another sculpture, am moving my studio to an artist co-op and am participating in a studio open house.

Tomorrow is Day 1 of CopyCamp, and I will also be attending the Technology In The Arts Conference next week. I’ll be blogging those events, but probably not much else this month. I’ll leave current events to Michael Geist and the folks over at Digital Copyright Canada.

I haven’t been blogging much because I’ve been spending extra time on finishing a sculpture and taking care of the administrative tasks that go with it (primarily documentation). Here are some things which have been happening while I’ve barricaded myself into my studio:

• Verner calls for film, TV industry’s help to draft C-10 guidelines
• CBC provides a summary of the C-10 issue
• George Jonas from the Truro Daily News asks “Art Subsidies–Why do we need them?”
• Utah Gov. Jon Hunstman Jr. looks into the Spiral Jetty issue
• The government is increasing the Ministry of Culture’s funding by $63 million over the next four years (search for “The Entertainment and Creative Cluster” within the document)
• Geist puts the National Gallery of Canada under his copyright-microscope

Michael Geist has launched iOptOut, a free online service to send opt-out requests in bulk to companies. It’s an interesting service and I commend Geist for continuing to respond to issues about which he’s passionate (even if it comes with much flair and self-promotion). I do wonder how necessary the service really is. I don’t get too many unsolicited calls or emails, and it’s few enough that it’s easier for me to opt out of them individually. But, of course, that may a result of me being careful about how much information I give to companies and diligent about responding to their updates to privacy policies.

Close on the heels of Sidorkin’s article on Matthew Barney’s mode of generating income from his art is an article by Glenn Peoples about fan-funded musicians (via Michael Geist). Barney’s model is about selling more than merely the film and distributing the film differently. However, the fan-funded model is essentially turning the traditional model of music production on its head. Rather than getting a record company to cover the costs of production, the musicians are going to their fans for the money. It almost feels like a commissioned process, only with multiple financial sources and great creative freedom. If this can be maintained (and can maintain the financial stability of the creators), it would be an excellent model.

Michael Geist points to an article in The Star by Peter Howell which quotes a spokesperson for Heritage Minister Josée Verner as indicating that “Canadian Heritage has not received an application for a production containing criminal content”.

This is great news, but doesn’t make people’s concerns a simple case of “legal absurdity”. The proposed wording in C-10 uses the phrase “public policy“, and does not speak specifically to issues of criminal content. Again, the concern is not the isolated inclusion of the phrase “public policy”, but its existence alongside Charles McVety’s lobbying “to deny tax credits to TV and film productions that contain graphic sex and violence or other offensive content”.

• Sam Trosow brings some disappointing news about an unsuccessful request to amend C-10
• Lawrence from Northworthy is keeping tabs on the news development
• Geist also likens the public C-10 response to that of the new copyright legislation, and reminds us that it’s about tax credits (this post has been hidden in my sea of email since Tuesday). The main difference between C-10 and the upcoming copyright legislation is we can actually see what’s in C-10.

Lawrence from Northworthy and Michael Geist write about a newly formed coalition, the Business Coalition for Balanced Copyright.

It seems like everyone is forming a copyright-centric coalition these days: the Canadian Music Creators Coalition, the Creators’ Copyright Coalition, the Canadian Coalition for Electronic Rights, and now the Business Coalition for Balanced Copyright (which, despite having members such as Google, Yahoo! Canada, Rogers, Telus and Tucows, does not seem to have a website yet).

What’s next? The Canadian Coalition of Copyright Coalitions?

Now that we’re done (maybe) creating coalitions, can we get together and actually resolve some of these issues?